Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Raj) 2174

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Pushpendra Singh Bhati, J.
Subhash & Ors. – Appellants
Versus
State – Respondent
S.B. Criminal Appeal No. 389/1992
Decided On : 25-04-2022

Advocates appeared:
Rajeev Bishnoi, Advocate, for the Appellant
Mukesh Trivedi, PP, for the Respondents

The main legal point established in the judgment is the application of the Probation of Offenders Act, 1958, based on the nature of the offence, the age of the appellant, and the absence of criminal antecedents.

Headnote:
Probation of Offenders Act - Criminal Appeal - Section 304 Part-II, 148 & 323 of IPC - [Section 304 Part-II, 148 & 323 of IPC] - The court discussed the legislative intent of the Probation of Offenders Act, the nature of the offence, the age of the appellant, and the absence of criminal antecedents. It extended the benefit of the Act to the accused-appellant and released him on probation with certain conditions.
Fact of the Case:

The Criminal Appeal pertains to an incident in 1990, where the appellants were convicted under various sections of the IPC. The appellants sought acquittal, citing lack of intention to cause death and the age of one of the appellants.
Finding of the Court:

The court found that the accused-appellant was entitled to the benefit under the Probation of Offenders Act, 1958, considering factors such as the age of the appellant, intention to commit the crime, lack of criminal antecedents, and the delay in proceedings.
Issues: The issues included the intention to cause death, the age of the appellant, and the applicability of the Probation of Offenders Act.
Ratio Decidendi: The court's decision was influenced by the legislative intent of the Probation of Offenders Act, the nature of the offence, the age of the appellant, and the absence of criminal antecedents.
Final Decision: The appeal was partly allowed, maintaining the conviction but releasing the appellant on probation under Section 4 of the Act, with specific conditions.

JUDGMENT

Pushpendra Singh Bhati, J. - In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Appeal has been preferred under Section 374 Cr.P.C. praying for the following reliefs:-

"It is, therefore, prayed that this appeal may kindly be accepted, the conviction of the appellants be set aside and they be acquitted."

3. The matter pertains to an incident that occurred in the year 1990 and the present appeal has been pending since 1992.

4. Vide impugned judgment dated 31.10.1992 the learned Additional Sessions Judge, Churu in Sessions Case No. 78/92 (20/91) convicted the appellants as under:-

Appellant No. 1 Subhash convicted for the offence under Section 304 Part-II IPC and sentenced him to undergo seven years R.I., along with a fine of Rs. 200/- default in payment of which he was to further undergo 2 months' R.I.

Appellants No. 2 to 9 convicted for the offence under Section 304 Part-II read with Section 149 of IPC and sentenced them to undergo seven years R.I., along with a fine of Rs. 200/- default in payment of which they were to further undergo 2 months' R.I. Appellants no. 1 to 9 convicted for the offence under Section 148 IPC and sentenced them to undergo one years' R.I., along with a fine of Rs. 60/- default in payment of which they were to further undergo 07 days' R.I.

Appellant No. 3, 4, 6, 7, 8 & 9 convicted for the offence under Section 323 of IPC and sentenced them to a fine of Rs. 100/- default in payment of which they were to further undergo 15 days' ' R.I.

5. Learned counsel for the appellants has shown from the record that apparently at the time of the incident, though there was a dispute between the parties, but there was no intention to cause death to the old lady, who was struck by lathi on head, which caused her death. It is also contended that since the intention was not there that is why the conviction has happened under Section 304 part-II.

6. Learned counsel for the appellants further submits that the appellant no. 1 was a minor but the theory of minor was disregarded by learned trial court. It is also contended that that main allegation was upon Subhash and Pratap, out of which, Pratap has already expired.

7. Learned counsel for the appellants further submits that apart from Pratap, Ram Kumar, Balveer and Rohitash have also expired. It is also contended that learned trial court could not prove the offence beyond reasonable doubt and in fact has rendered the judgment on probabilities.

8. Learned counsel for the appellants also submits that looking into the age of the appellant no. 1 and also the fact that he has already undergone a sentence of two years and 10 months, thus, the appeal may be allowed while giving the benefit of Probation of Offenders Act to the surviving appellant and the sentence awarded to them may be substituted with the period of sentence already undergone by them.

9. Learned counsel for the accused-appellants submits that the accused-appellant do not have any criminal antecedents to his discredit.

10. Learned counsel for the accused-appellant further submits that the sentence awarded to the accused-appellant-Subhash suspended by this Hon'ble Court vide the order dated 10.02.1994 passed in S.B. Criminal Misc. Second Bail Application for Suspension of Sentence No. 40/1993 and thus, his on bail.

11. Learned counsel for the accused-appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act').

"4. Power of court to release certain offenders on probation of good conduct.--

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case includi